Wednesday, September 29, 2010
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Court Reduces Conviction in Eagle Rock Prostitute Murder
By KENNETH OFGANG, Staff Writer
Prosecutors failed to prove that the killing of a woman identified as a prostitute and found dead in front of an Eagle Rock church was premeditated, the Court of Appeal for this district ruled yesterday.
Div. One reduced Richard J. Bojorques’ conviction for the murder of Veronica Linasero from one of first degree murder to second degree murder and his 25-year-to-life prison sentence to 15 years to life. The justices, however, rejected the defendant’s bid for a new trial, saying the testimony of witnesses who were not personally present at an autopsy and a DNA test about which they testified did not violate his constitutional right to confront his accusers.
Linasero was killed in October 1997, and found lying on her back in a flower bed near steps leading to the front door of the church on Eagle Rock Blvd. She was bloody and appeared to have been sexually assaulted.
Bojorques was matched to the victim in 2006 through DNA testing of a swab from her left breast. Subsequent testing of blood on the victim’s shirt also showed a match to the defendant.
Trial Testimony
Linasero lived near the church, and her roommate testified that the victim worked as a prostitute. The roommate also testified that she saw the victim get into a man’s truck in front of a liquor store the night before she was found dead.
A pathologist who was not present at the autopsy testified, based on his review of photographs, X-rays, notes and a report prepared by a colleague, that the victim had extensive bruising, abrasions, and fractures, and that she had been strangled. She also appeared to have suffered forcible anal penetration prior to death.
DNA experts testified that the estimated frequency of occurrence of the male DNA profile found in the breast swab was more than one in 12 quadrillion. A police detective who interviewed the defendant after the first DNA match said he initially denied knowing the victim and denied killing her, but admitted that he’d had sex with numerous prostitutes.
Defendant’s Admissions
After initial denials, he admitted that he might have picked up a prostitute near the liquor store a few blocks from the crime scene, but said he had not been in that area since 1996, although he later admitted he had been in the area more recently. He said the victim might have had his DNA on her because she had picked up something of his, but eventually said it was possible he had picked up the victim for purposes of prostitution, although he did not recognize her.
He was released following the interview but later arrested.
The defense contended that the DNA evidence was inconclusive and that the male DNA from the victim’s breast could have been placed on the shirt through secondary transfer. An additional DNA expert testified for the prosecution on rebuttal that testing conclusively linked the defendant to the crime and that secondary transfer was highly unlikely.
Jurors found Bojorques guilty of first degree murder but not guilty of sodomy, and found the sodomy special circumstance allegation not true. Judge Judith Champagne sentenced him to 25 years to life in prison.
Unpublished Opinion
But in an unpublished opinion for the Court of Appeal yesterday, Presiding Justice Robert Mallano said the first degree murder conviction could not stand. The jury’s verdict on the sodomy charge and related special circumstance, he said, was a rejection of the felony-murder theory, so jurors must have concluded the murder was premeditated.
That conclusion, however, is not supported by substantial evidence, Mallano said.
Premeditation, he explained, is normally proven by evidence that the defendant planned the killing, had a prior relationship with the victim from which a motive for murder may be inferred, and/or killed the victim in a manner suggesting a “preconceived design.”
There was no such evidence against Bojorques, the presiding justice wrote. There were no witnesses to the murder and no evidence that the victim and defendant knew each other, and the physical evidence was “fully consistent with a killing resulting from an unconsidered or rash impulse” rather than a preconceived plan, the jurist said.
While the manner of killing arguably showed that the defendant had time to premeditate, “the passage of sufficient time does not mean that premeditation actually occurred,” Mallano wrote.
In rejecting the defendant’s Confrontation Clause arguments, Mallano concluded that the testimony of an expert who reviews another expert’s work is not testimonial hearsay within the meaning of Crawford v. Washington (2004) 541 U.S. 36 when the witness is stating his or her own opinions and not merely relaying those of the expert whose work he or she reviewed.
The case is People v. Bojorques, B219307.
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